PRAMATHA NATH ROY Vs. LEE

JUDGEMENT

(1.) THE appellant in this case is the defendant in a suit which the respondent instituted by a plaint filed on June 24, 1916. The various stages in the litigation are set out in detail in the judgment of the Chief Justice in the Appellate Court at Calcutta, and it is unnecessary that they should be repeated. Among these there was a decree made on February 14, 1918, decreeing in favour of the respondent and against the appellant the sum of Rs. 27,443. Application made by the appellant to Greaves J. to set that decree aside was refused on July 26, 1918. The appellant desired to appeal from that refusal, and he produced his memorandum of appeal before the Court on August 30 of that year, on the eve of the Court rising for the vacation.

(2.) BY Rule 3 of ch. 32 of the Rules of the High Court of 1914, it is provided that every memorandum of appeal shall be accompanied by a copy of the decree or order appealed from, and with this rule the appellant did not comply. The memorandum of appeal was, however, admitted without the order, subject to all objections that might be raised on the hearing which took place on January 29, 1919. It was then decided by the High Court that the appeal was out of time, and it is from that judgment that the present appeal has been brought. That the notice of appeal was out of time, in fact, is beyond dispute, for the period of appeal is twenty days from the date of the decree or order which it is sought to impeach, and that period expired on August 15, 1918. But there is a provision contained in Section 12, Sub-section 2, of the Indian Limitation Act of 1908, which provides that in computing the time for appeal there shall be excluded the time requisite for obtaining a copy of the decree. The appellant's contention is that the time " requisite " within the meaning of that sub-section is the time which, in the circumstances of the case, is actually occupied in obtaining the decree, and that, so regarded, the time that ought to be deducted here is more than sufficient to rectify the delay.

(3.) NOW the learned judges in the Appeal Court have held that in determining what is the requisite time referred to in Section 12, Sub-section 2, of the Limitation Act the conduct of the appellant must be considered, and their Lordships think that in so determining they have rightly regarded the statutory provision. In their Lordships' opinion, no period can be regarded as requisite under the Act, which need not have elapsed if the appellant had taken reasonable and proper steps to obtain a copy of the decree or order. In the present case he took none, and the periods between July 30 and August 6, and again between August 7 and August 16, which were within the appellant's control, are sufficiently great to prevent the appellant saying that the time that did elapse must have elapsed even if he had acted with reasonable promptitude.